May 29, 2009

A lawyer (Sheema Chaudhry) said that about Sonia Sotomayor (as reported in this NYT article). Well, sounds like she'd fit right in on the Supreme Court. That's exactly what those oral arguments are like. And give me a break. A judge is "judgmental"?

The oral advocate is benefited when the judge makes it clear exactly what the sticking point is for her. Pay attention and respond, if you can. I've read many Supreme Court cases that turn on the very point that a key Justice pushed the losing lawyer around with at oral argument. It's an opportunity. Use it. Don't whine about it. Let the judge be judgmental and the lawyer be lawyerly.

Another lawyer, Gerald Lefcourt, said: "She used her questioning to make a point... as opposed to really looking for an answer to a question she did not understand." Again, this is typical of Supreme Court argument. So she made her point, and she wasn't having any difficulty understanding something? That's a signal to the lawyer to make a point that tops hers. Make a better argument. Having a position and revealing it at oral argument — which occurs after the judge has studied all the arguments in the written briefs — happens all the time in the Supreme Court. It doesn't mean that the judge is close-minded. It means the judge is prepared and using the argument time efficiently. The lawyer needs to up his game.

Sheema Chaudhry also said : "She’s brilliant and she’s qualified, but I just feel that she can be very, how do you say, temperamental.” And Gerald Lefcourt said that, compared to the other judges on her court, Sotomayor is "more strident and much more vocal." Strident, temperamental... I hear gender in these words. I have no idea what Chaudhry and Lefcourt actually experienced, but this is the way people talk about strong women.

Judge Guido Calabresi, a former dean of Yale Law School who taught Ms. Sotomayor there and now sits with her on the Second Circuit, said complaints that she had been unduly caustic had no basis. For a time, Judge Calabresi said, he kept track of the questions posed by Judge Sotomayor and other members of the 12-member court. “Her behavior was identical,” he said.

“Some lawyers just don’t like to be questioned by a woman,” Judge Calabresi added. “It was sexist, plain and simple.”

Frankly, I wouldn't mind if Sotomayor was an unusually caustic and argumentative judge. There's no reason why the female needs to be the one who's most deferential and polite. In fact, it's good for some women to equal or outdo men in the verbal jousting. Badgering lawyers, it's not just for Scalia anymore. Bring on Sonia to scare them from the liberal side.

181 comments:

These make me think of the complaints against Clarence Thomas. People are afraid to say, "The president picked you for your ethnicity and your ideology and your youth. Since I know SC Justices are philosopher kings and I don't want a king with your ideology, I will vote against you."

she doesn’t let you finish your argument before she jumps in and starts asking questions

In law school mock trials, the fake judges did this all the time, and they did a piss poor job of it, really, as if they were interrupting only for the sake of interrupting. I always assumed this was to simulate what judges actually do.

When I've seen judges do it in context, it makes a lot more sense why they are doing it. I've never seen a live appellate oral argument, though.

These Temperament articles are like National Enquirer headlines accusing her of "having her epidermis showing". They are being pretentiously reported as if they are revelations. Really they are red flags being intentionally waived in front of know it all conservative Bulls in hopes of generating angry words that will offend the only Voters that the GOP needs to get onto the GOP side in 2012. It is awful to watch as the GOP is also using this "racist, dumb, mean, and female" Judge within itself as a wedge issue for punishing GOP moderates. The Obama Boys are winning the trifecta with this nomination.

paul a'barge, a lawyer who gets "intimidated" by an appellate judge who interrupts and asks tough questions has no business in appellate practice. Anybody who has hired such a lawyer to represent them on an appeal should hire a different one, quick. This is what appellate judges do -- not just on the US Supreme Court but in any appellate court with a "hot bench," which simply means that the judges are well-prepared and have questions for the lawyers. Sometimes those questions do seem more like arguments for one position or the other than true questions. There's nothing the least bit improper about that. It's a way of testing the solidity and the limits of the opposing argument.

I am no fan of Sotomayor, but that's for other reasons. It's just silly to suggest that she is in some way unsuited for the bench because she behaves during argument like a well-prepared appellate judge, rather than a potted plant that's up there on the bench for ornamental purposes.

I don't care that she is caustic to lawyers. Most judges are. If she were abusive or said inappropriate things, that would be different. Being a bit obnoxious should not disqualify someone from being on the court.

Her decision in the Rici case and her "wise Latina" statement are relevent criticisms. This is not

Let's be clear: you're selectively quoting an article which selectively quoted reviews of Sotomayor in order to make her detractors appear unreasonable. We're not exactly talking about a neutral source are we? This IS the New York Times we're talking about...

A full reading of the situation is that Sotomayor was among only 3 of the 21 judges who were reviewed by those lawyers who got bad reviews, and this was done before she was nominated to the Supreme Court so let's not pretend this is a reaction to her nomination.

Combined with other clues about decisions she's reached in the past and statements she's made about her sexist and racist proclivities, are you really sure you want to go out on a limb and claim that she's just getting picked on because she's a woman?

What is emerging from those who don't confine their reading to strictly pro-Obama publications is not particularly flattering, but for all the cautions to Republicans about how they need to tread carefully in opposing her nomination there is an equally cautionary note to be sounded for those who support it: Your credibility is on the line too.

You may think: hey we can brand Republicans as racists if they oppose her nominations. But remember, the message that people absorb from your defense of an ill-tempered sexist and racist is that you don't really care about equality or justice at all.

There are plenty of fair-minded minorities who don't want a Supreme Court justice making decisions based on her gender or ethnicity - just the law, thank you very much. And you underestimate the public anger at all forms of racial preferences at your own peril.

She made the statements she made about the "physiological" superiority of wise Latina women and about how courts are where policy is made. She hasn't taken them back, and shows no inclination to do so.

You and Obama may get the nominee you want, but it will be at a cost to both of your reputations.

Also, I never had an oral argument in Appellate courts where I was not interrupted continually by 1 or 2 Justices. It is disconcerting to see serious, mean looks and dismissive attitudes coming down at you from behind a massive elevated Bench populated by Black Robed inquisitors who have total lpower over your case, and who refuse to listen patiently to your best arguments. But in the end they politely thank you, and usually rule in your favor by finding a narrower grounds wrinkle in the case that you did not think of as controlling.

Oral arguments at the SCOTUS are silly, and this whole discussion shows why. We are supposed to believe that the justices have already read or been carefully briefed on all of the arguments and pertinent facts, so nothing new is presented at oral...and that's why it's OK for the justices to peck away at the lawyers, as if somehow a new framing of an argument or a new emphasis on one will decide the case in the tiny amount of time allotted. The whole notion of the strident, interrupting, arrogant judge is offensive to respectful argument and justice.

Do away with oral argument and let such justices as actually have open minds on cases before them (oh, really?) circulate written questions to both sides. The whole thing would be better and more efficient via email.

I think the oral argument aspect of all cases at all levels is a vital aspect. It's really the only way to put the things the lawyers are saying to any kind of concrete test. Most of the time, the judges have made up their minds. Some of the time they have not, or a good lawyer can make a difference.

They interrupt because there is not much time and they want to make sure the issues they are most concerned about are addressed, instead of listening to some lawyer drone on and repeat everything that's already in the briefs. In my appellate practice I liked it when they interrupted me to ask questions, because it meant they were paying attention to my argument, were thinking seriously about the issues, and hadn't already made up their minds. It also gave me a window into what aspects of the case seemed significant to them, which would allow me to tailor the rest of what I had to say. Yes, sometimes the questions may be a bit confrontational or even sarcastic, but so what? It is not a dinner party. It is ARGUMENT. That does imply arguing, after all.

My father had a lawyer that was combative and would ask a question, and before you could answer, he would answer for you. He wouldn't accept any criticism. I took him in front of the MN Bar Association and beat him. Me, AllenS, high school graduate.

There is good faith, tough questioning from the appellate bench and then there is domineering judicial performance art.

Even sophisticated, well-informed lawyers who are there as it happens will disagree on which was which.

But if one really cares to address the issue, a good tie-breaker is to ask the question: If Judge X was so well-prepared that he or she had all those insightful questions, then why didn’t he or she already figure out the answers?

I wasn’t the only law clerk told to study the briefs, read the cases, do my own research and submit a memo and a list of questions to be asked from the bench.

Seven...You will never hear this about Sotomayor either after her confirmation circus is over. For the present, she is being used both by the Obama Boys and by the opportunistic conservative Media industry as a Tow Target for AAA gunnery practice. Some body needs a quick drill in friendly aircraft recognition so we can stop this friendly fire which is being carefully reported to every honorable and educated Hispanic (not a race, but a cultural tradition) opinion leader who is wondering now whether he can remain a Republican where hispanics seem to be regarded only as another dumb race.

Where does the Times find these losers? Oh yeah, thousands of squirrelly, whiney, oh-woe-is-me, trust-fund babies from Ivy League schools are in NYC, yes? Any lawyer worth his salt wants an active, challenging bench...even a snide judge. Often it is that judge who is trying to make a point with her colleagues. It is the questioning, "judgmental" judge that is fully prepared and ready to rumble. Help her! Earn your ridiculous fees for a change and shut the hell up when it's over. Here endeth the sermon.

Maybe its anti-hispanic in that some people stereotype them as tempermental.

maybe it an anti-woman thing in that her being normally abrasive is considered more offensive because she is a woman.

And maybe it was something idiosyncratic. i won't assume bigotry, although they seem to be really uninformed about what you should actually expect from judges.

But no matter how you slice it, THIS is not the reason to oppose her. Nor would these silly claims that she is not qualified. i have seen where Guido Calabresi stood up for her credentials, too, and he's no push over on grades, either.

Nor is ideology. Even if she said she was going to interpret the constitution loosely, first, who is shocked to hear that? and second, that is what happens when you lose an election.

The only reason to oppose her is because her "latina woman" comment has raised a reasonable question about her impartiality in many, many cases. Under the canons of judicial conduct, she would have to disqualify herself, imho, from every case involving discrimination, or white men, or latina women (as parties or attorneys). In turn compliance with this canon would so impair her service as a justice that it would be inappropriate to send her to the SC. indeed, i think she should resign entirely.

She spoke out of turn and said something inappropriate. it sucks that she has to be so careful with what she says, but even guido will tell you that this is the life of a judge.

the nomination should be withdrawn and Obama should nominate someone else.

Strident as sexist is a reaction to the pitch of a woman's voice, usually. Even women react that way.

``Very few women in public life do not worry that their voices are too high or too light or too shrill to command respect. Margaret Thatcher trained for years with a vocal coash to make her voice sound more like those of the other Honourable Members and still earned the nickname Attila the Hen.''

In my listening to the SCOTUS orals, I find that the Justices tend to mostly interrupt specious argument and tap-dancing.

And why not? Why sit there and listen to a dumb argument for its full run?

"Do you really think that a gun in a school zone impacts interstate commerce?"

"Yes, your honor, because all the little children might worry about there being guns near them on the play ground, or they might see it and get scared, and all that will impact their studies that day, and the cumulative effect of occasionally scared little children is that they won't be as well educated and their work in commerce won't be as productive, and ...."

You're pulling out the 'Hispanics are wondering if they can still be Republicans' card already?

What a bunch of horsehockey.

I have two words for you: Miguel Estrada.

Democrats went to the mat to defeat his nomination to the appellate bench because he is Hispanic. They feared it was prelude to a nomination to the Supreme Court, and the prospect of both an African-American (Thomas) and a Hispanic (Estrada) who didn't fit with their identity politics would be damaging to their cause.

So where were you claiming that 'Hispanics are wondering if they can still be Democrats' when they ginned up the party machine to defeat an obviously qualified Hispanic?

There were no arguments that he was qualified for the job. No questions about his racism, sexism or temperament. The Democrats were quite open about their opposition to him based purely on his race.

And you said nothing. And neither did any of your liberal compatriots who now claim that it is Sotomayor's ethnicity is now going to be a problem for her opponents.

The hypocrisy is so thick that it doesn't even take a knife to cut it: it falls apart on its own with just a single glance.

You can make plenty of arguments to support your position that Sotomayor's version of identity politics is just fine with you, but a) that isn't one of them, b) it's provably false, and c) it shows that you don't really care about actual racism: just liberal politics.

the nomination should be withdrawn and Obama should nominate someone else.Talk about a rush to judgment. How about following the norm and allowing the nominee the opportunity to address this one statement at the committee hearing before making such a demand?

As they say, Be careful what you wish for. You might want to consider the alternative.

That's true. But it's also how people talk about women who are assholes.

Is Scalia strident and temperamental? Yeah, you could say that. Actually Scalia is a decent and charming man in person but he also is impatient with shoddy thinking and argumentative by nature.

So Sotomayor is tough on people sometimes? Maybe she is an asshole. So what? Other Supreme Court justices have been assholes, and many lawyers are. It makes them unpleasant but it doesn't keep them from doing their job.

Rahm Emmanuel is strident and tempermental--an asshole and proud of it. Isn't slowing him down.

"AAA gunnery practice. Some body needs a quick drill in friendly aircraft recognition so we can stop this friendly fire which is being carefully reported to every honorable and educated Hispanic (not a race, but a cultural tradition) opinion leader who is wondering now whether he can remain a Republican where hispanics seem to be regarded only as another dumb race."

Hold it. The Democrats totally trashed Miquel Estrada and denied him a vote for the DC Circuit. Did you think that Dems hated hispanics then? If Sotomayor's story is so compelling, why wasn't Estrada's? Oh I know, it is always acceptable to be a racist when it comes to Republican minorities.

"And give me a break. A judge is 'judgmental'?"SI don't know about Sotomayor specifically, but some appellate judges have an annoying tendency during oral argument to respond with ridicule to arguments they don't agree with. This ofter happens before the lawyer has finished making the argument in question, so the ridicule is beng directed to the argument the judge expects the lawyer to make, not the one actually being made.

This is bad news for a bunch of reasons, the least of which is the disrespectful treatment of the lawyer. The judge is interfering with the effective presentation of arguments, leading the discussion into blind alleys, and wasting the time of both the lawyers and the other judges on the panel.

I saw an amusing example of this a few years ago in the federal appeals court in Atlanta. One of the judges interrupted a lawyer in mid-argument and said there was no need to continue because he (the judge) was not convinced. The lawyer replied, "Well, perhaps you could let me try to persuade your colleagues, who after all are a majority of the panel and might outvote you." One of the other judges laughed outright.

Jim ... If you think I am a liberal, then you are new to this Blog. I am a traditionalist in cultural matters and a realist in legal and political matters.The hispanic culture is a powerful voting bloc for the GOP in the swing state of Florida. Those are 1/2 recent immigrants who favor the Dems as "for benefits". But the other 1/2 are successful and highly educated--Just like Sotomayor. Those are the swing votes the GOP needs to retain. We cannot get the Immigrant's vote, but we can split off and keep the other Hispanic votes unless we are too angry at Obama to think straight. And remember that Hispanics are not a "race", but are a language centered traditionally Catholic culture ruled by Spain from 1492 until TR's time, and they are still fearful about their acceptance level within this Arrogant Collossus Yanquis country.

she doesn’t let you finish your argument before she jumps in and starts asking questions.What kind of law school did Sheema Chaudry go to, where they didn't do Moot Court or Appellate Advocacy? This is par for the course.

The only purpose of oral argument is for the judges to resolve any questions they still have after reading the briefs -- not to hear you repeat a condensed version of the brief.

traditionalguy said... .The hispanic culture is a powerful voting bloc for the GOP in the swing state of Florida. Those are 1/2 recent immigrants who favor the Dems as "for benefits". But the other 1/2 are successful and highly educated--Just like Sotomayor. Those are the swing votes the GOP needs to retain. We cannot get the Immigrant's vote, ..."

Wow. Very off topic but equally full of misstatements. Define recent immigrants please..recent from where? there is a citizenship requirement remember?

Obama won in all sectors of the Hispanic block except for small parts of Dade in the 1st generation Cuban community. otherwise note two things:

Florida isn't a swing state any longer. the GOP has no swing states...just a little pile of them.

The GOP can retain their low 40% of the Hispanic vote in 2012 and will get clobbered again.

Doing what you guys are attempting to to do Sotomayor is just pounding another nail into the coffin.

We already have justices who have empathy for Goodyear Tire and Rubber, ExxonMobil, and their duck-hunting buddy Dick Cheney.OhNoz! The Supremes don't have empathy for ducks! We need an empathetic justice for Feathered-Americans. Lots of Canada geese out the window here. IMMIGRANTS, ALL. And we all know how anti-immigrant Alito is!

To venture a guess about Obama's methods, he is skillfully appearing as the Sensitive Leader on all issues. Under the surface he is pillaging the wealth of Americans to weaken them.But in every appearance he is more Sensitive than his hardened opposition. Sotomayor fits that image well. Plus she is a red flag being waived in the face of Obama Haters who are dutifully attacking her in anger for no good reason, while the GOP's share of the hispanic vote goes down the drain. Today's under 30 demographic desires sensitivity in their leaders more than any other Trait.

> Talk about a rush to judgment. How about following the norm and allowing the nominee the opportunity to address this one statement at the committee hearing before making such a demand?

Because there is nothing she could say that would make it so that we no longer reasonably questioned her impartiality. I have listened to her supporters attempt to defend it for three days now, and no one can come up with an explanation for that statement that eliminates the problem. There is still a reasonable question as to her impartiality. That’s the legal standard, because we so value impartial justice that we refuse to even allow the appearance of bias. And in case you think I am making it up, here are the exact words:

> A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned[.]

http://www.uscourts.gov/guide/vol2/ch1.cfm#3

How on earth, given what she said, can she say that her impartiality can’t reasonably be questioned? Is it actually your position that it is unreasonable for a person to think that statement was racist? Or that she could say or do anything now, after the fact to make it unreasonable to think that the statement was racist?

Did you know that in the same speech she suggested the superiority of latina women judges was due to an inherent trait? Oh, and she is a member of La Raza. You know what the term translates to? “The race.” Nice.

Indeed, this whole controversy creates its own problem. Now suppose she gets a new case with white people claiming discrimination. Would she be tempted to bend over backwards in favor of the white people, in order to attempt to rebut the concerns we have? So even if there wasn’t a question of bias then (which I don’t concede), there is a question of bias now.

Bluntly, she shouldn’t have opened this can of worms in the first place. If she was not willing to profess a belief in equality, she should have shut up. This is a problem of her creation and there is no solution to it.

> As they say, Be careful what you wish for. You might want to consider the alternative.

Aaron said... "Because there is nothing she could say that would make it so that we no longer reasonably questioned her impartiality. I have listened to her supporters attempt to defend it for three days now, and no one can come up with an explanation for that statement that eliminates the problem."

HEY AARON....read the entire transcript. You dullards make my head explode.

What a buncha pussies whining away. Grow some advocacy skills and a few layers of skin and then let's talk. Worthless "law school as therapy for a failure to figure out what I want to be when I grow up" types, all of them!

Like someone upthread said, in every interruption an opportunity.

I like the whininess of the quotes, though: the whole nomination brouhaha thereby becomes a universe-collapsing-upon-itself festival of victim culture.

The truth is that the Democrats were quite explicit in opposing Estrada on the grounds that he was a conservative Hispanic. They stated it openly and loudly. The filibuster was the method they used to kill his nomination, but it was the method not the reason.

This is another tactic to try to disguise the racist truth of Democratic identity politics. Try to confuse people with "it was a filibuster" rather than address the blatant racism and then claim the "truth is somewhere between."

No it isn't. The truth is what the truth is. You can't defend the racism, so you try to muddy the waters instead. It's not going to work, and everyone who tries to claim that opposing Sotomayor is somehow racist without being able to prove that they said the same thing about Estrada's nomination is just spewing propagandastic lies.

I know the Democratic party thinks they have everyone snowed on their faux concern for minorities, but every day this little drama goes on they and those who defend their actions are revealed for the hypocrites they are.

The racism is coming from the Left of the aisle - from Sotomayor and those who voted against Estrada - as is necessarily the case when your argument is based on identity politics. You can't play identity politics without an inherent racist attitude. The Democrats are masters of the game, but it doesn't change who and what they are.

The entire transcript makes her statement WORSE not better. The entire transcript includes that she says it is due to her inherent physiological differences that her decision would be better than a white man.

For someone calling other people dullards, you must have missed that day in school when they covered reading comprehension.

You need to explain why her comment is different than any other racists' comments that other races are inferior because of their genetics because that's the meaning of a plain reading of what she said. You can twist yourself into all sorts of pretzels trying to explain to all the "dullards" out there who evidently understand the plain meaning of words much better than you, but it doesn't change that her claim of physiological superiority is both racist and sexist.

I'd love conservatives to explain why she backed President Bush on the 'Mexico City rule' in 2002.

Her opinion was that the Government was free to push the pro-life position if it wished, especially when public funds are involved.

In one shot, she supported an anti-abortion position and upheld executive authority of a conservative President. That hardly sounds like an 'activist judge legislating from the bench.'

She also upheld allowing relgious displays in a city park in White Plains, NY.

I strongly suspect that consevatives will let her through because in the end she isn't 100% liberal and Obama's REAL 'big stick' is that there are other judges out there who are far more liberal and activist, and they know it.

The problem is not that she might make some decisions with which I might agree or disagree. As an Obama appointee to the court, I would expect that I will disagree with a large number of decisions. None of that is the issue.

The issue is whether or not she is even capable of being fair where matters of race or gender are concerned. Her decisions to date suggest that she might not be. Her statements make it clear that she isn't capable of fairness where white males are concerned.

For a society that's tied itself into knots over gay marriage which, at most, affects somewhere between 2-4% of the population, there are a whole lot of people here who are completely unconcerned that a nominee to the high court has expressed a disdain for a much higher portion of the American populace.

She feels that as a Latina women she is inherently better than a white man, and that attitude is as unacceptable from her as it would be from an Asian, hermaphrodite. I don't care that she's Hispanic or that she's liberal. I care that she's a racist and a sexist.

As a human being, one cannot help but that their experiences inform their decision-making process. As such, Alito's comment was just a statement of fact.

However, Sotomayor claimed an inherent physiological *superiority* based on being a Latina. She crossed the line between saying her decisions would be informed into saying that as a Latina she was inherently better qualified to reach a decision.

I suspect you already know this, but are trying to muddy the waters as well. Nice try, but it's not going to work. She said what she said and there's no way around it.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown. .

i have read it. Nothing she said eliminated the reasonable question to her impartiality. In fact the context makes it worse.

If you think i am wrong, point to me the passage where she negates it. Point to me the passage where she says, "what i said before, which called into question my ability to impartially judge cases, i was just kidding really." Or maybe, "i am sorry, did i just say latina judges were better? i meant to say judges who could speak latin were better. i mean if you don't know that language, you just aren't really educated!"

But as far as i saw, she never said anything that even mitigates the damage.

More experience gives you the ability to make better decisions. (Unless you believe ignorance is bliss.)

A Latina woman who has been able to succeed in a white, male dominated world has had experiences that her white male counterpart has not had. (Unless you believe that the life experience of a Latina is identical to that of a white male.)

If you've read the full transcript then you know what she said and are just trying to play games. She was very clear that she feels that her physiological differences would enable to her reach a better decision.

She said "I would hope" in the same way that one would say "I would hope that only an idiot wouldn't know better than to think that some kind of Clinton semantic game is going to get her off the hook for an obviously racist and sexist statement."

It's a common way to say "This is what I believe should be true," but then again I'm not actually calling you an idiot because I said "I hope," right?

See how ridiculous it is to claim that I didn't call you an idiot when you're at the receiving end of Sotomayor's version of "hope"?

Alpha and FLS, I don't believe the quotation supports your interpretation. Of course she said that more experience improves decisions, and as far as that goes, who would disagree? But she didn't stop there. She went on to, at the very least, imply that a white male, by definition, has inferior life experiences to the "richness" of those of "wise" Latina women. If she didn't mean to draw connections between the value of a judge's experience and that judge's gender and color, then why mention gender and color at all? Her statement only says what you say it says if edited as follows:

"I would hope that a wise judge with the richness of experience would more often than not reach a better conclusion than a judge who hasn’t lived that life."

That's not what she said. And sadly, reading it in context of the rest of what she did say doesn't help.

Prior to her statement that she believes a Latina would reach a better decision than a white man, she quite clearly states that she believes that cultural and physiological differences lead to different decisions. So explain to me what physiological differences between a Hispanic and a white exist that would lead to the paragraph's concluding statement that a Latina will reach a better decision than a white man.

Maybe you believe that Latinas have superior DNA, larger craniums, or a better distribution of body fat. Please explain which of these differences leads to better decision making by Latinas. Also explain how that doesn't make you a racist to believe it.

And do you really think that all white males have, universally, found it easier to succeed than all latina women? That no white men anywhere in the country have experienced economic or cultural disadvantages, even those born in slums or arrived here as penniless immigrants or plagued by disabilities, that approach those encountered by all Latina women, even those born to privilege and wealth and advantage? Of course you don't. Neither do I. I hope Justice Sotomayor doesn't, either. But I don't think there's anything wrong with asking her for a bit more of an explanation.

Before you claim that someone can't back up a statement about a quote, you should actually read the quote for yourself. It says what I said it says. You are the one who intentionally ignored her statement about cultural and physiological differences and wanted to act as if it did not exist.

Again, nice try but you only make a fool of yourself when make comments like that.

Second, the "wise" line came from Justice O'Connor and she was referencing it.

Third, she was referring specifically to race and gender discrimination cases. It's pretty obvious to me that her statement is correct: White men generally lack expertise and understanding of discrimination.

Someone who is on the receiving end of both race and gender discrimination knows how that works better and how the goals of non-discrimination can better be met.

Kind of like saying someone with a background in banking will better be able to understand finance.

I know it was a nomination to a different position but I recall hearing a lot of Democrats accusing John Bolton of being mean and terse to some people he worked with in his various jobs prior to his nomination to be the US Ambassador to the UN. This was one of the reasons Bolton didn't get Senate approval.

Jim: It says what I said it says. You are the one who intentionally ignored her statement about cultural and physiological differences and wanted to act as if it did not exist.The hell it does. Do you even know what "physiological" means?

Definition: the branch of biology dealing with the functions and activities of living organisms and their parts, including all physical and chemical processes. .

You have completely failed to make your case. You're just repeating your talking points.

Show us where she says Latinas have superior biology, as opposed to a different experience related to sex and gender discrimination.

It's Liberal dogma that white men, simply by virtue of being white, automatically have it better than minorities. It doesn't matter whether the minority child was born into wealth and privilege and that the white man was born into poverty. It's just one of a piece of ridiculous things that Liberals believe, but people like Sotomayor and some of the commenters here actually believe these things as a given.

Challenging that belief will get you called a racist or a bigot or something equally hateful and they don't care about facts. Any time one of them slips up and admits it in public rather than in just their isolated enclaves, they think they can use Clintonian parsing of sentencing to make you believe that they didn't say what they just said.

Sadly many people are still willing to buy it, but there's no sale here. Sotomayor said what she said. She hasn't apologized or even "clarified" (to use the NewSpeak term for explaining to the rubes that their words mean something other than what they actually mean). She feels superior and thinks she's better than white men by virtue of being Latina. She can feel that way if she wants to, but that doesn't mean this anyone else is required to approve of her position or elevate it to the highest court in the land.

If she can't even maintain the pretense of objectivity before she gets the job, what makes anyone believe that she'll even pretend to be objective after she gets it?

Here’s where she suggests that something about her womanhood or latin origins makes for a superior judge due to inherent traits, with emphasis added:

> Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

See what I mean when I say it is even worse in context. Now would you say there is at least a reasonable question as to her impartiality?

FLS

> More experience gives you the ability to make better decisions. (Unless you believe ignorance is bliss.)

Um, no, actually only specifically a latina female experience. A white male experience, according to her, does not.

> A Latina woman who has been able to succeed in a white, male dominated world has had experiences that her white male counterpart has not had.

We all have had different experiences. To say one is more valuable than the other is idiotic.

And what specific experiences has she had that the white guy hasn’t? discrimination, for instance?

Even if that white male is disabled?

Oh, that is right, you are a disability bigot. You actually wrote that a dyslexic had no business being a fireman. Nevermind.

(for everyone else’s benefit, this is what he said about the plaintiff in Ricci:

(“Frankly, I don't see how a dyslexic can do the job [of fireman]. He'll pull up his hook and ladder to a STOP sign, misread it as POST, think ‘I don't need to stop; I don't have any letters to mail’ and sail right through the intersection, causing a massive collision and sickening carnage.”

But to bring a little, you know, law back into the discussion, can you really say that it is unreasonable to question her impartiality? Because if you can’t, then you have to concede she should be disqualifying herself from cases left and right. We would get, at best, half a justice from her, her having to check out of every case where the parties or lawyers are white males or latina female, and any case involving discrimination.

Because of her unwise statements, she has disqualified herself. We need to find another nominee.

Someone who is on the receiving end of both race and gender discrimination knows how that works better and how the goals of non-discrimination can better be met.Unless you are Clarence Thomas, at least in regards to race discrimination.

The hispanic culture attends the same Church and recieves the same sacraments together leaving them feeling equal before God and concerned about every Racially Mixed communicant from Castile's, White as Italians, Rulers from Spain to the hard working peasants with 50 recognized mixed bloodlines. They are also into the habit among themselves of calling Americans descended from Anglo-saxons, Germans and Norwegians "Whites". So conservatives need to chill out and let good and highly qualified Hispanics become your friends. Why would anybody but an Obama supporter like to see a Racial Division Issue be the outcome of this nomination?

1) Go to Sylvan and take the Reading Comprehension course.2) Read the entire transcript.3) Get someone to explain that when someone claims to make a superior decision based on her physiological differences then she is claiming that she has a superior physiology.

It's really not rocket science no matter how difficult you're making it for yourself. I get that you would defend an Obama appointee and fellow Liberal no matter what they said or did, but you're provably wrong. You've been proven wrong, yet you keep coming back for more. Does the name Sisyphus mean anything to you?

> And do you really think that all white males have, universally, found it easier to succeed than all latina women? That no white men anywhere in the country have experienced economic or cultural disadvantages, even those born in slums or arrived here as penniless immigrants or plagued by disabilities, that approach those encountered by all Latina women, even those born to privilege and wealth and advantage?

Thank you for saying that and as a white male born with three learning disabilities I can assure you that i have faced more discrimination than alot of minorities and women have, though obviously others have suffered more.

But where we disagree is that she has already created a reasonable question to her impartiality and that is enough to disqualify her for the high court. See my first post in this thread for a fuller explanation.

Funny!BTW, Rush was going full steam ahead w/ the racist accusation today. I don't know why Althouse and others can't see that Rush is a hack.

Ralph,

I sure hope that judges are aware of the personal experiences that influence their decisions. Consciously knowing of these influences can guide their decisions, but (if they're wise) it can also help them to be on the lookout for blind spots where their personal affinities may misguide them.

I would be afraid of a judge who seriously believed they were perfectly unbiased and as a result they have a lock on absolute truth. [This sounds like the partisan nuts on both sides.]

Alpha, are you just not reading the other comments? The word "physiological" was Justice Santomayor's choice. It's in Aaron's 1:18 comment but just in case you can't find it, here's the line: "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging." Tell me she's not saying that she does not "abhor" or "discount" the possibility that "physiological" differences, along with experience, "make a difference in our judging." She is.

Sorry, if you read it in context, she is at least suggesting that some of this is due to "inherent traits" and not merely experience.

And i have already provided that context.

And the question is whether a person can reasonably question her impartiality. are you saying we are all being unreasonable. every single one of us? even the democrats who are telling the president, "gee, this looks pretty bad?" Because if your answer is yes, then she must step down from more than 50% of the cases she sits in on.

I was actually heartened by hearing about how she handled oral arguments. Of course, we shall see if the points she is trying to make or ask then have any bearing on the ultimate decisions.

One thing that may have been missed above, was that another reason for judges and Justices in oral arguments to ask the questions they do, is to persuade others on their court. In other words, to some extent, in many cases, the lawyers are mere props for the arguments among the judges.

What will be interesting is to see what sort of questions she asks, and whether any of the other Justices pick up on her line of questioning. Will she be off mostly alone in left field? Or will her questions bring some of the moderate, and even conservative, Justices around?

Ralph, thanks for pointing me to that comment. Aaron highlighted this line, among others:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. .

To which I point out she says "abhor less" which still means to abhor. When a person abhors a perspective they are not embracing it.

And, I cannot find any elaboration on this use of "physiological." From there she speaks to experience shaping judgments, which is very reasonable.

So this assertion that she claims some physiological superiority is not supported.

That later post of mine did bring up another concern that may not have been addressed that much, and that is how well does she work with other judges. There have been rumors that in certain respects, she doesn't work that well with them.

And what is really insidious is that it used to be considered sexist to say that women inherently saw the law differently. Ditto on race. But here is a woman, of a minority race, apparently endorsing the reality of racial or gender differences between men and women when it comes to the law.

And, btw, its complete crap. i can assure you if there is a difference between men and women, or among the races, in their ability to practice in the legal profession, i have never seen it manifest itself.

Oh now Alpha, you are really reaching. Let's try the substitution test. Posit a white male judge giving a speech. "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Santomayor, our gender and national origins may and will make a difference in our judging. . . . I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn't lived that life."

Still comfortable that all she's talking about is "experience"? If so, explain.

Happy to elaborate. I'd consider such a statement from a white male candidate for the SC to be a very welcome admission, until the very flawed comparison to a Latina.

White males are not on the receiving end of discrimination and lack the ability to understand it as well as those who have lived it. We have heard, for decades now, white males insist that sex and race discrimination do not exist.

Which is why Sotomayor makes this great point: Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. .

And they were all men.And, this line from the same Sotomayor speech makes loads of sense:

HD... I just saw your question from 11:02. The born in the USA children over 18 from parents seeking legal, or illegal, immigration are still motivated by the ideas that even more recent immigrants deserve kindness from wherever God sends it. The elections of FDR 4 times and Truman once resulted from the GOP losing black voters who had been loyal since Lincoln. A swing State won by 450 votes, like Bush in 2000, is a good reason to resist the conservatives'acting like Dr Strangelove's Arm and assaulting the Hispanic people's comfort level just to show off their righteous anger at Democrats.

Alpha, every discrimination case has two sides. Not one side. Two sides. Our adversarial system is based on the idea of IMPARTIAL judgment. That means the judge doesn't take sides. When you suggest that discrimination cases are best decided by a judge who will adopt a perspective sympathetic to the person claiming discrimination, you are also saying that the judge should devalue the perspective of the accused person. Oh, yes, you are. Because if a white judge can't decide a discrimination case between a white and a Latina as fairly as a Latina judge can, that means the white person's side matters LESS. You have decided that the accuser is right and the accused is wrong -- before the case has even begun.

There are so many things wrong with the idea that a person from an often-discriminated-against group will necessarily do a better job deciding discrimination cases than will a person from an often-rightly-accused-of-discrimination group that I don't know where to start. So I'll just content myself with saying that you are displaying a complete, pernicious, profound, and shameful ignorance of the underpinnings of our whole constitutional system of justice that is truly breathtaking -- even from you.

"abhor less" still means to abhorNo, she may not abhor it at all. She didn't specify how *much* less, which leaves us free to take it in its worst light. Sloppy speech (perhaps due to a liberal cocoon) or Racist?

A person trying to appear non-racist would say "which I abhor as much as Judge Perfect."

Tancredo: "If you belong to an organization called La Raza, in this case, which is, from my point of view anyway, nothing more than a Latino -- it's a counterpart -- a Latino KKK without the hoods or the nooses."

Fred BARNES: "I think you can make the case that she's one of those who has benefited from affirmative action over the years tremendously." (She graduated high school as valedictorian / 2nd in her class at Princeton)

Why would the right think this is a good strategy, and how does it fit with their "big tent?"

a goyim saying they understand anti-semitism every bit as well as a JewUnderstand it? Hell, we practice it everyday! We're experts!If it weren't for the Jews, I might have a stinky, greasy foreskin to play with. You took my toy.

When you suggest that discrimination cases are best decided by a judge who will adopt a perspective sympathetic to the person claiming discrimination, you are also saying that the judge should devalue the perspective of the accused person. .

If I said that, you'd have a legit point. But I didn't and you don't.

Again, I refer you to this line from the same speech:

Personal experiences affect the facts that judges choose to see. .

Findings of fact are a key part of judicial decision making. If a justice ignores some facts, then there will not be a conclusion that a problem exists.

Kind of like you are ignoring this line from the same speech because it doesn't fit your argument. (Oh, yes you are).

FYI, Sotomayor is also being knocked from the left for deciding against a woman in a sex discrimination case. That decision blow a wide hole in your argument.

Alito: "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender.

And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them."

"Findings of fact are a key part of judicial decision making. If a justice ignores some facts, then there will not be a conclusion that a problem exists."

Sorry, Alpha, but we are talking here about appellate courts, which do not find facts. Trial courts do that. Appellate courts decide whether the trial courts properly applied THE LAW to the facts. In so doing they may consider whether the trial judge properly considered all the facts, but they don't, except in certain specialized and limited circumstances, get to make findings themselves.

And you still haven't addressed the primary logical problem in your argument. "Personal experiences affect the facts that judges choose to see." Of course that's true. And that's exactly why we don't want judges in power who believe that by some right and power derived from their gender and skin color, "[w]hether born from experience or inherent physiological or cultural differences," the facts they see will result in better decisions than the facts seen by a judge of some other gender and skin color.

Now I am going back to work -- incidentally, on a discrimination case between two white men. Where the heck are you going to find a judge fit to hear that one???

If Republicans were really a bunch of white racists, they'd roll over for Sotomayor. This affirmative action stuff hurts minorities, so that people like Sotomayor, when they do succeed, are widely believed to have done so on the basis of inferior intellect.

Except Republicans tend to take a macro-social/economic view of things. Affirmative action mucks up the market system and merit system that, if left to function properly, helps everyone. Like, for example, the people getting fire service from firefighters who can pass the qualification tests.

Apparently, Sotomayor believes that taking a wide view is wrong. That she attributes her unwillingness to do so to her being a "wise Latina" shows a lack of understanding. So fine. Confirm her. She'll likely always vote the wrong way, but that was going to happen no matter who Obama nominates. If she really believes in this "wise Latina" crap, the defects in understanding make her unlikely to convince any fence-sitters to take her side. Anthony Kennedy, I'm looking at you.

Plus, does anyone really think that all of this racialist crap rhetoric in politics is going to last much longer? Affirmative action was a big 90's movement, that's reached its culmination with Obama himself. The voting rights and redistricting stuff is starting to die out. Jesse Jackson, Al Sharpton-they're a public joke in the mainstream. All of this obsessively race-centered stuff is going to fall out of vogue, either because it's acheived its purpose or because people don't care. But clearly it's important to Sotomayor, member of La Raza/The Race. So if this is her pet issue, I'd just as soon have her on the Court as anyone else.

I understand your problem, and the problem generally with insitutional biases, but saying this:

If they don't even SEE a fact, then they can't state whether or not it's been considered.Doesn't alleviate those concerns. If a judge doesn't see a fact it's because a lawyer didn't do his job. The judge is expressly not supposed to advocate for one side or the other, including seeking out facts that one side for whatever reason failed to present. There's a huge legal framework in place for making sure that these facts are presented by the parties before the judge to give the other side a fair opportunity to respond. Tackling the issue of institutional biases at the judge level by having the judge interject her own experiences denies the other side their own fair chance to be heard, even if the judge is just trying to help. Some of us would rather the judge just go ahead not SEEing a fact so as to preserve some neutral arbiter at the federal level. She's not running for legislator here.

The Sotomayor nomination is clearly an example of identity politics resulting in the nomination of a very average appellate judge to the SCOTUS. She ain't the first!

I doubt that even Obama's supporters expected more of him. The whole Obama deal is identity politics and the Chicago Way.

It also seems pretty obvious from her comments that she is a racialist and possibly a sexist. I assume that works well for Obama, although not so well for the integrity of the Court.

This latest criticism about interrupting counsel and being aggressive from the bench is, however, beyond the pale.

During my appearances before the Supreme Court and other appellate courts I was never allowed to finish an argument without questions, nor was opposing counsel. It would have been extremely unsettling to have finished uninterrupted, particularly when my argument was structured to provoke questions.

And some of the judges were strident and tempermental, too. Big deal.

The critics need to score their points off Obama for a transparently political nomination of a racially biased judge and let's get on with the confirmation.

Jim said... 'The entire transcript makes her statement WORSE not better. The entire transcript includes that she says it is due to her inherent physiological differences that her decision would be better than a white man.'

No it doesn't you moron. Here is the quote in question:

".....that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."...

and what goes on around it is full of qualifiers, if's, supposes, and perhapses.

Before you do the moron tag on someone who has read the stuff and has taken the time to find it and read all of it...putz!

Alito: "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender.

And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them."

Can we please stop talking about Sotomayor? Of course she's awful. She's being apppointed by Obama; anyone he picks is going to be awful. But the Democrats control the Senate and the White House, so that's the end of that. They can appoint awful people if they want to.

We'll have the next thirty-ish years to bitch about how awful Sotomayor is. No need to do it all now. :)

From the same transcript, with the all-important central paragraph which Jeremy is very carefully leaving out:

"Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.

And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, “You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.”

If Sotomayor had said anything like that central paragraph to explain her other comments, it would reassure people that she does, after all, understand her job. Perhaps she still will.

Well, I don’t. And, bluntly, if she meant discrimination cases only, she would have said so. Lawyers have to know how to write clearly. This is the difference between the world lawyers live in, versus creative writers. A novelist can expect people to read his or her book sympathetically, and in good faith, hoping to understand what the author is saying. A lawyer, by contrast, knows that there are many people who actively try to misinterpret what they say to their advantage. As a judge she should have known that these remarks could be used against her to disqualify her from sitting in cases on a strategic basis. She had a duty to make sure she was absolutely clear what she said.

I have too much respect for her intellect for me to believe she didn’t realize the implications of her words. I’m not letting her off the hook that easy.

And if she dare says “I didn’t think anyone would interpret it that way” then I will take back every nice thing I said about her intellect and demand her ouster for being incompetent in her profession.

> To me, the con position here is kind of like a goyim saying they understand anti-semitism every bit as well as a Jew. Don't think so.

Are you kidding? The people who are able to blend with the bigots, or even those who practice bigotry, often contribute greatly to our understanding of bigotry. LBJ, for instance, spoke incredibly eloquently about racism. And Justice Harlan, the lone dissenter in Plessy, himself once owned slaves—an apparently reformed man. He understood better than most what a complete farce separate but equal would be. As one lawyer friend said to me on the subject of disability discrimination, “they haven’t learned to lie about disability prejudice like they have about racism and sexism.” It says as much about where we are on racial and gender relations as it does about attitudes toward the disabled. So a real argument can be made that because of that lack of candor on racism and sexism, only a person who is white or appears white has a chance of accurately gauging the existence of racism.

So a statement that a wise white man would reach a better conclusion on the subject of discrimination than a latina woman would be every bit as logical as your argument. And equally unfair.

The fact is we all bring different sets of experiences to the table and all of them are equally valuable.

To say that a person is superior to another as a judge, ON ANY SUBJECT, simply because of the color of their skin, or what dangles between their legs, is wrong and downright pernicious.

How many opinions do you think she's written over the past 20 years or so?You're just trying to pin her down as something she is not, based on a a few things the press has reported versus her entire career.

"Ralph - You appear to have quite a bit of firsthand knowledge relating to penises.

How many do you see, fondle or have in your mouth a day?"

Ahh, there's that sensitive liberal protector of gay rights, Gene Olson, showing us that he can't think of any insult worse than a man being with another man sexually. That's what I call sensitivity and tolerance!

Let's try the substitution test. Posit a white male judge giving a speech. "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Santomayor, our gender and national origins may and will make a difference in our judging. . . . I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn't lived that life."

But the substitution is incomplete. To complete the substitution, one must posit a world dominated by Latinas -- a country whose every President for two centuries was Latina, a country where even now, seven Supreme Court justices are Latinas, and an eighth is a Latin man.

And what's with spelling the Judge's name "Santomayor," Mrs. Wantsit? Does your practice encourage you to misspell judges' names?

Yes, the Sotomayors moved from the Bronxdale Houses to Co-op City sometime after Sonia graduated from Blessed Sacrament. Which was a good move because the South Bronx in the late 60s was fucking dangerous. According to my buddy who lived in Co-op City and went to Bronx Science during that same time period, Co-op City was a little island of calm in a sea of crime and chaos.

> But the substitution is incomplete. To complete the substitution, one must posit a world dominated by Latinas

In case you missed it, it is not a defense in a discrimination case to say “but he’s white!”

Indeed, as Justice O’Connor said repeatedly “[a]t the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial or sexual class.” Sotomayor’s comments violate that. If you can’t see it, it is because you have racial/gender issues yourself.

Indeed, your comments are racist/sexist. By your own words, you judge the speaker’s comments not by their content, but by the color of the skin and/or the gender of the speaker.

And you keep dodging the question, that I keep raising. Doesn’t her comment raise a reasonable question as to her impartiality in cases involving white males, latina women and/or discrimination?

She didn't seem very empathetic to Frank Ricci. And he's an American With Disabilities.

She expressed shame at Lat on Lat crime and empathized with the VICTIMS of crime; she didn't seem very supportive of freedom of speech in the "douche bag" case; she sided with the cops in an abuse of arrest powers in Jocks (perhaps understandably, as a former prosecutor); she doesn't think that individuals have 2nd amendment rights; and it would not surprise me if she sided with the libs on the SCOTUS against the homeowners in the Kelo decision.

Question is, after her statements, would her opinion on Kelo be any different if it were a Latino neighborhood?